N.I. Abraham v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 1ST DAY OF AUGUST 2013/10TH SRAVANA, 1935** ## **WP(C).No. 29514 of 2009 (H)** ## **----------------------------** ## **PETITIONER(S):** **--------------------------** **N.I.ABRAHAM, HIGH SCHOOL ASSISTANT (RETIRED), RESIDING AT NERAVATH HOUSE, KUNNACKAL P.O. MUVATTUPUZHA-682 316.** **BY ADVS.SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU)** ## **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,** **GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM.** **4. THE HEADMASTER, GANAPATHY VILASOM HIGH SCHOOL, KOOVAPPADY, PERUMBAVOOR.** **R1 TO R3 BY GOVERNMENT PLEADER SRI. EGY N. ELIAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29514 of 2009 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **-------------------------------------** ## **P1 : COPY OF OPTION STATEMENT DATED 12.11.1985 SUBMITTED BY THE PETITIONER.** **P2 : COPY OF STATEMENT OF FIXATION IN THE REVISED PAY SCALE W.E.F.1.6.1984** ## **P3 : COPY OF STATEMENT OF FIXATION OF PAY W.E.F.29.6.1989.** **P4 : COPY OF STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE OF PAY W.E.F.1.6.1989 DATED 20.1.90** **P5 : COPY OF PROCEEDINGS DATED 24.2.1990 OF THE 3RD RESPONDENT** ## **P6 : COPY OF OPTION STATEMENT DATED 28.1.1994 COUNTER-SIGNED BY 3RD RESPONDENT** **P7 : COPY OF STATEMENT OF FIXATION OF PAY DATED 28.1.1994 W.E.F. 1.6.1992** ## **P8 : COPY OF OPTION STATEMENT DATED 15.1.1999 SUBMITTED BY THE PETITIONER** **P9 : COPY OF STATEMENT OF FIXATION OF PAY DATED 25.6.1999 W.E.F. 1.6.1999** **P10 : COPY OF LETTER DATED 9.12.2008 OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT** **P11 : COPY OF LETTER DATED 23.1.1999 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT** ## **P12 : COPY OF LETTER DATED 24.2.1999 OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT** **P13 : COPY OF STATEMENT DATED 5.3.2009 SUBMITTED BY THE 4TH RESPONDENT** ## **RESPONDENTS' EXHIBITS** **---------------------------------------** ## **NIL** //True copy// P.A. TO JUDGE Shg/ ## **C.K. ABDUL REHIM, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.29514 of 2009** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of August, 2013** ## **J U D G M E N T** Petitioner is a retired High School Assistant, who entered service on 29.06.1979. He was sanctioned increments in the pay, with effect from 01.06.1981, 01.06.1982 and 01.06.1983. When the general pay revision was implemented in the year 1985, he opted for the revised scale from 01.06.1984 onwards. The practice of opting the revision with effect from 1[st] day of June was adopted in the case of the subsequent pay revisions brought into effect in the years 1985, 1989 & 1993. The above facts are clearly revealed from Exts.P1 to P7. When the pay revision was effected during the year 1999, the petitioner submitted the option statement. By way of a mistake he mentioned the date of option as 01.07.1999, instead of 01.06.1999. However, on accepting the option, the petitioner's pay was re-fixed with effect from 01.06.1999, presumably realising W.P.(C)No.29514 of 2009 **-2-** the inadvertent mistake. Thereafter, on that basis he was given increments with effect from 01.06.2000, 01.06.2001 and 01.06.2002. The petitioner retired in March 2009. When his service records were forwarded for preparation of pension papers, the 2[nd] respondent raised objection pointing out that the acceptance of option exercised was erroneous and fixation of the scale of pay in the senior grade with effect from 01.06.1999, cannot be sustained. The 4[th] respondent was directed to re-submit the pension proposals after revising the pay. The 4[th] respondent had submitted an explanation to the 2[nd] respondent stating that, noting of the date of option as 01.07.1999 was only a bonafide mistake and the District Educational Officer had already sanctioned higher grade with effect from 01.06.1999. But the 2[nd] respondent declined to accept the said explanation. In view of Ext.P10 directions issued by the 2[nd] respondent, pay of the petitioner was re-fixed for the period from 01.06.1999 to 28.02.2009 and he was directed to refund a sum of Rs.33,299/- received as excess payment. W.P.(C)No.29514 of 2009 **-3-** Eventhough the petitioner submitted Ext.P11 request, the 2[nd] respondent had returned the Service Book directing re-fixation. Consequent to re-fixation effected, the monthly pension and commuted value of the petitioner was also reduced substantially. Aggrieved by the said action, this writ petition is filed. 2. The petitioner points out that, on realising that the date mentioned in Ext.P8 as 01.07.1999 was only due to a bonafide mistake, the District Educational Officer had already accepted the date of option as 01.06.1999. All consequential benefits due to the petitioner was already paid long back. The attempt now made to rectify such position as it is a mistake, after a long period of 10 years, cannot be sustained. The petitioner had placed reliance on a decision of the Hon'ble Supreme Court in **Syed Abdul Qadir & Ors. v. State of Bihar and others [(2009) 3 SCC 475]** . The apex court held that, if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and, (b) if such excess W.P.(C)No.29514 of 2009 **-4-** payment was made by the employer by applying a wrong principle calculating the pay/allowance or on the basis of a particular interpretation of a Rule/order, which is subsequently found to be erroneous, the relief against the recovery has to be granted on principles of equity. This Court in **Narayanan v. State of Kerala [2008 (3) KLT 188]** held that if excess pay fixed is recovered from the petitioner's retiral benefits, that will be a very heavy blow on him. In the case of such nature, the recovery should not be directed when it is a case where the incumbent had not obtained the higher salary on committing any fraud or misrepresentation. Even in case where the mistake happened on a misconception of law, the employees will be entitled to some allowances in the matter of re-fixation of pay. In a recent decision of this court in **Mohanan v. State of Kerala [2012 (3) KLT 92]** it is held that a benefit which is granted with regard to promotion or pay scale is sought to be reversed from an anterior date, the same will be violative of Articles 14 & 16 of the Constitution of India. W.P.(C)No.29514 of 2009 **-5-** Once the pay fixation has been made validly, which was been enjoyed by the petitioner, it has become the right vested upon him. Therefore it cannot be re-fixed retrospectively. 3. When evaluated on the basis of settled legal position as above, it is evident that option exercised under Ext.P8 was accepted by the authorities treating the date as 01.06.1999 and all benefits were paid to the petitioner long back. The re-fixation on the basis that the acceptance of the option was made erroneously, cannot be permitted after a long lapse of 10 years. Further, learned counsel appearing for the petitioner had pointed out that, if the option would have accepted at that time itself as 01.07.1999, the petitioner might have got an opportunity to exercise re-option and to get it corrected. Even without affording any such opportunity the re-fixation now sought for, after a long lapse of time, cannot be permitted. 4. In the counter affidavit filed by the 2[nd] respondent it is contended that the educational authority had no power W.P.(C)No.29514 of 2009 **-6-** to change of the date of option filed by a teacher. Therefore the option exercised with effect from 01.07.1999 ought to have been accepted. It is further stated that the 4[th] respondent had fixed liability to the tune of Rs.33,299/and the balance amount after effecting deduction has already been paid. Learned Government Pleader submitted that the deduction of the said amount of Rs.33,299/- out of the DCRG payable was effected only on the basis of the consent issued by the petitioner. He has made available a copy of the letter issued by the petitioner in this regard in which it is requested that the amount of Rs.33,299/- may be recovered from the DCRG and to make payment of the balance amount. Eventhough it is contended that the consent given for deduction is to be treated as concession made for recovery of the excess payment, I am not inclined to accept such a contention. Merely because of the petitioner requested to effect payment of the balance amount of DCRG after deducting the liability fixed, it cannot be construed that he had conceded for such liability. In W.P.(C)No.29514 of 2009 **-7-** view of the position remaining settled as illustrated above, recovery of the alleged excess amount cannot be sustained. 5. Under the above mentioned circumstances, the writ petition is allowed and Exts.P10 and P12 are hereby quashed. The respondents shall take necessary steps to make payment of the amount of Rs.33,299/-, withheld out of DCRG, to the petitioner at the earliest possible. Deduction in the quantum of pension and retiral benefits if any effected on the basis of the re-fixation shall be rectified and paid to the petitioner. Necessary steps for compliance of the directions should be taken at the earliest possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. Sd/- ## **C.K. ABDUL REHIM, JUDGE** shg/